Never heard of a "med-legal" conference? Neither had I. I learned when I did a chair side visit to a major third party administrator in Windsor, CT. I asked the adjuster who was hosting me, "What is the next step in the indemnity claim?" – my standard question when an adjuster walks me through a client's claims, when I seek to learn how the adjusters in that office approach claims. The adjuster said that the "med-legal" conference was coming up soon. Huh? The WHAT kind of conference? Ah, med legal… I had never heard of it and neither had the employer's risk management team. Tell me more.

Medical care for an injured employee can be complicated. When the injured employee is represented by an attorney, the plaintiff’s attorney often tries to make the injury appear more serious than it is. Defense attorneys who have handled many similar claims often have a fairly good understanding of the medical terminology and what is meant by various medical reports and are not fooled by the plaintiff attorney overstating the nature and extent of the injury.

However, there are situations where the injury to the employee is unique, and the seriousness and/or complexity of the injury is not fully understood by either the workers comp claims adjuster or by the defense attorney. It is in situations of this nature that a conference between the defense attorney and the doctor is needed. These medical-legal conferences are normally held during the discovery phase of a workers comp claim in litigation, but can be held at any time and are often held in person at the doctor's office attended by the claimant's doctor and the employer's attorney. (WCxKit)

Med-legal conferences can occur by telephone, but more often the defense attorney will reserve an appointment with the medical provider to review and discuss the medical treatment an injured employee is incurring. The med-legal conference allows the defense attorney to better understand the injured employee’s medical care. The defense attorney will have the opportunity to ask questions about the medical reports and will hence be able to decipher and understand the medical reports better.

The med-legal conference puts the nature of the injury, the extent of the injury and the future medical treatment needed into plain English that the defense attorney will be able to understand and convey, if necessary, at a Board hearing or in a full-blown trial. This makes the negotiation of any settlement on the workers comp claim more accurate and feasible.

The med-legal conference also will assist the defense attorney to understand the chronological sequence of the injury, the medical treatment and the recovery. The defense attorney will also better understand the reasonableness of the previously provided care and of the proposed future medical care.

To better understand the use of a med-legal conference, consider the following real claim.

The employee was removing a motor from a dump truck. The employee fastened a chain around it and lifted it with a fork of the forklift (no safety program at this employer!). When the forklift moved, the motor dangling on a chain, swung around and struck the employee in the top of the back, breaking the right clavicle with a compound fracture.

After four months of treatment, the medical provider placed the employee at MMI. The workers comp adjuster paid the PPD rating and thought the claim was done. Two months later the claimant calls the doctor and is in severe pain. The doctor does an x-ray and the clavicle, which had been healed in the prior x-ray before the employee was placed at MMI had developed a non-union along the fracture lines. The plaintiff attorney filed for a “worsening of condition” with a request for additional medical treatment, additional temporary total disability and was pursuing a higher PPD rating.

The defense attorney met with the doctor following the resumption of medical care to discuss the cause of the non-union and how it could have developed after the employee was released from care. The doctor explained that within a reasonable degree of medical certainty the failure of the previous union of the bones had to be caused by the employee suffering an aggravation at his new employer. The doctor explained there was diagnostic evidence of an aggravation. The aggravation breaks the chain of causation resulting in the employer at the time of the initial injury no longer being responsible for the claimant’s medical condition.

To prepare for the med-legal, the employer's medical director can have a conversation about the injury with the defense attorney (their defense attorney). The better understanding the defense attorney has, the more effective the discussion with the claimant's doctor will be. Get the Injury 101- version of the injury from your own doctor, then be prepared to gather advanced information from the claimant's doctor.

Attorney Theodore Ronca suggests for the employer's attorney ask the claimant's doctor, "What is your timeframe for return to work?"

The cost of a med-legal conference is the cost of the doctor’s time and the cost of the defense attorney’s time. The med-legal conference will often answer the questions the defense attorney has in regards to the medical treatment and the status of the injured employee, eliminating the need for a formal deposition and the associated cost.

It is often worthwhile to pay for the time the doctor and the defense lawyer spend reviewing the medical care, the causes of medical issues and the proper resolution of the medical issues. Med-legal conferences should be used any time the medical issues are complex and the understanding of the employee’s medical condition is not clear.

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@ReduceYourWorkersComp.com.

As a Risk manager, claims coordinator, agent, human resources representative — whatever your title may be, the name of the claims game comes down to reserves. Reserves are the tangible part of what an injury costs you, either directly out of budget, or as potential future increased premium costs. A lot of speculation and estimation goes into reserving a file, but a good percentage of the time when you try and come up with a number for a file you find yourself way too low. Why are the numbers that your adjuster recommends so high? What exactly do we have to cover as future medical cost, even though this claimant may no longer work for you? How do adjusters learn how to reserve?

1. It is the cost of the claim for “life”When you think about reserving a file for the long term, you have to think long term. Not long term as in 10 years. Long term as in for the rest of that person’s life. In most states, if an injured worker needs long-term reasonable and necessary medical treatment for their injury, and the doctor relates treatment specifically back to that injury, then your company is probably responsible. You can get an IME (Independent Medical Review), or record review to fight why the recommended treatment is not related but, typically, the burden of proof is just causal relationship. If the patient can show the need for treatment relates back to the injury of 20 years ago, they have met their burden of proof. This is when these injuries can come back to bite you. Instead of settling 10 years ago because you thought the number was “too high,” now you are going to have to scramble to come up with a defense and, if it is indeed related, not only will you have medical costs but you may have wage-loss costs as well. (WCxKit)

The future is your biggest enemy in surgical claims with long-term exposure. Once surgery is performed, nothing is ever the same. Scarring, nerve issues, accelerated arthritis symptoms, the need for ongoing medication and doctor evaluations, diagnostic testing, etc. These things all lie in wait for the future. Sure, right now in 2011 the claimant’s demand of $100,000 may seem like a lot. But you have to break the file apart, and this is what the adjuster does. If your injured worker is 30 years old, you potentially have 55 years of exposure. If back surgery was in 2011, and the claimant is 30 years old, you have a ton of problems sitting there waiting for you. The claimant may be fine now and the surgery was a success. But what about 5,10,15 years from now? Will be needed another surgery? Maybe that one will not go as well. So consider the long term: The life of the claim, the life of your claimant, and the need for future medical treatment.

2. The injury requires potential future surgical riskSurgical cases are major red flags for future problems, especially when some sort of hardware is implanted. Most of the time these people return back to doctors due to pain, usually due to hardware or screws becoming loose. Then this person has to undergo a procedure to have it removed. Then, they have to rehab from that, and then they can return to work. But, again, the issue here is when will the person need that hardware out? Some can live with it forever and never come back. Some come back in a year or two. Some have constant problems with it and it creates problems preventing them from making a full recovery from surgery.

Back surgery is especially risky. In the world of workers comp you do not hear about many success stories with major back surgery. It may lessen the pain, but it can create a ton of future issues. When you evaluate these claims and costs of settling them, be sure to account for future surgical risk. It is very costly, and very risky, and maybe you better get rid of that risk now if you can versus adopting a “wait and see” attitude.

3. The costs ongoing medicationsIf you pick up any newspaper you will run across a story about the costs of medications and how they are dramatically increasing. Each drug manufacturer has their reasons to increase price but, whatever the reason, the bottom line is prices are always going up. And if you have a claim where a claimant has to take ongoing medication for pain or nerve issues, those meds are typically not the cheapest ones. Sometimes generics are available and worth looking in to, but its still an ongoing monthly cost that can drag on for years. You can find out from your IME doctor if it is necessary for your claimant to continue taking these meds, how often they should be taking them, etc. That way you can properly estimate the future cost. But keep in mind to add in a percentage for inflation over the years, since prices show no indication of decreasing.

4. An MSA may be needed

Perhaps the biggest roadblock to settling a claim is the need for a Medicare Set-Aside (MSA). The MSA breaks down future cost for those who require future treatment while also being on Medicare or of retirement age. If your veteran worker sustains a major shoulder injury a year before retiring that is not good. Not only do you have to cover surgery and rehab on a veteran worker in your shop, but also, the chances for a good recovery are guarded, which means ongoing treatment could last for years. An MSA is needed if you want to move this case to settlement. MSA numbers are not small. There are several vendors who specialize in MSA reports and submissions, and they will tell you they are very costly once approved by CMS (Center for Medicare/Medicaid Services).

MSA’s are costly, speculative treatment estimations. And the key word here is “estimates.” There is no guarantee the claimant will need another surgery. But they may estimate it for you, and make you pay for one just in case. So maybe that is a scenario where you should not settle. It is something to discuss with your adjuster. The point is, be aware if an MSA is needed it is going to financially cost you to settle and resolve your risk involvement in this case.

5. The age/general health of the claimant matters

Obviously if a 22-year-old worker falls and breaks his neck, you have about 63 years of medical exposure. If your 67-year-old, part-time janitor falls and breaks his ankle, you have maybe 16 years of exposure. Age matters. The younger the claimant, the more severe the injury, the more costly it is going to be. Reviewing employees personal health histories correlates to cost as well. The healthier the person, the speedier the recovery and the less it may cost to get them back to full duty work.

It is hard to control genetics. Everyone is different and heals differently, but you can get a good idea about if someone is “healthy” or not. If you have seen your claimant in the past eating fast food and chain smoking during daily breaks or lunchtime, you know quick healing is probably not in that person's future.

Summary

The art of reserving a file for life expectancy is part science, part estimation, and part experience. Adjusters see the same injuries day in and day out. Sometimes they deal with poor healers and sometimes they deal with those who make a speedier recovery than planned for. This is why reserving a file for probable outcome is an art form. All you can do is look at the evidence and what the future may hold. If in doubt, aim for a higher rather than lower reserve figure.(WCxKit)

For your long, large claims, utilize the help of a life care manager or an MSA company. Talk about future medical needs and costs with your adjuster. Roundtable the file with your peers and see if you are missing anything. Ask your adjuster during your weekly roundtable meeting. If you don't have a weekly roundtable, it might be time to ask for one. It is complicated to think about every cost an injured worker may need between now and 40 years from now, but if you use the tools at your disposal you should be able to get an accurate, effective reserve for the life of the file. If you want to outsource this – and many do – to a an expert, consider the Life Care Planner services of your TPA or MSA company. Also, ask your adjuster for the Reserving Worksheet – this can clear up any problems.

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Manage Your Workers Compensation: Reduce Costs 20-50%www.WCManual.com.Contact: RShafer@ReduceYourWorkersComp.com.

This is an outline of measures that can be taken by employers to reduce NY comp expenses. The measures outlined have been undertaken by employers in the past with success. The measures do not come at the expense of workers and worthy claims; they limit delay and arrive at correct payments without enlargement due to inefficiency and insufficient information.

2. The NY workers compensation system since 1947

The present compensation system was largely created by the 1947 changes, the most significant of which was enlarging the number of lump-sum settlements. Although only 1% of all claims resulted in a lump sum, these claims carrier 60% of all attorney fees awarded. (WCxKit)

The second significant change occurred in the 1960s when the Board declared that its medical guidelines were obsolete but failed to adopt new guidelines until the 1990s. In the intervening period, this led to decades of litigation with a “blank yardstick” resulting in the majority of settlements clustering at 50% disability on PPD claims.

3. Recent attempts at reform

In 1984, a compensation commission report called for creation of objective medical guidelines to limit the growing number of trials, appeals and prolonged adjudications of claims which resulted in frustration of workers and dubious accuracy in results. The then proposed changes threatened to radically alter the practice of comp law for both claimant and defense lawyers and were resisted, as have recent changes.

Currently, extensive guidelines have been enacted for medical treatment and evaluation of permanent disability, but there are still no published methods for measuring post-injury loss of wage earning capacity a claimant has returned to work or has received a valid offer of work within residual capacities. Such offers will be one of the methods for cost reduction described in this outline.

4. Reasons for prolonged litigation in New York

New York has had an anomalous workers compensation system for decades. The reasons have to do with the politics of the 1940s which, after a generation, were forgotten, but the residua have remained.

The system became marked by an elevated number of hearings, trials and appeals. Law, regulations and court decisions were seldom cited and the proceedings were seemingly governed by informal customs rather than law and fact.

That is currently changing, with restrictions on litigating issues without cause or preparation, but the generally casual atmosphere has remained. However, parties making efforts to diligently investigate all facts and research law to prepare claims – especially prior to the first hearing – will realize advantages and results.

5. Opportunities for employers

There are a number of critical points in a New York claim where an employer’s efforts can achieve unexpected results. The results can take many forms reaching a correct resolution months or years sooner, limiting unnecessary testimony, reducing adjournments to obtain material that should have been available at the first hearing and reducing unwarranted awards.

The Principal Employer Initiatives

Use of OSHA for investigation of problematic claims. (29 CFR 1904.5 can be used to obtain HIPAA releases and schedule an early IME exam.)

Enhanced preparation of the first report (C-2) with location and attachment of supporting documents for defense.

On PPD claims,

a search for prior medical conditions to be conducted 6-9 months after date of injury,

an ADA conference with worker, with spouse present,

offers of modified or full RTW prior to Sect 32 settlement discussions,

for certain acute conditions, employer assistance and support for SSDB

claims although no comp claims have been contemplated.

Initiative A (OSHA)permits HIPAA releases and an IME exam, by the employer,

Far faster than is possible under the NY WCL by a carrier or TPA. The OSHA records remain separate and are not automatically released to the comp file

but, with proper efforts, can be used in in the compensation claim. The HIPAA releases produce information that is a highly effective method for keeping unrelated conditions from becoming merged into the comp claim.

The active role by an employer in the beginning of a claim is, in fact, appreciated by most employees.

Initiative B (enhanced C-2)is designed to utilize the employer’s superior background knowledge and access to relevant documents. These assets are not developed simply by completion of a C-2. Often, a claim will come to a successful conclusion at the first hearing solely because a fact is identified, explored and developed before hearings start.

Initiative C contains three separate parts for limiting PPD claims.

A. The location of prior medical records which can support a reduction, or halting, of future wage loss payments, per the April, 2011 “Poli” decision.

B. An ADA conference, so that the claimant, and spouse, may hear of RTW possibilities prior to any Sect 32 settlement offers. (Spouses are usually supportive of RTW rather than settlement and should be present at the conference.)

C. An offer of limited or modified work which, if refused, can be construed as a voluntary withdrawal from labor. The offer also acts as an objective measure of wage earning capacity and can supplant Board guidelines for medical evaluation of PPD final rates. (WCxKit)

Initiative Demployer SSDB assistance for certain medical conditions such as heart attacks, can reduce comp claims filed later. Many workers comp heart attack claims are not filed until after a worker has consulted an SSDB attorney, most of who are also comp attorneys, and the time to file a compensation claim has not yet expired. Workers frequently resist filing claims against employers who have been supportive.

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

The role of the employer after an accident is vital. Unfortunately, it is a misconception that it consists solely of filing a report (C-2) with the carrier and Workers Compensation Board within 10 days. That might be the barest minimum legally possible, but it is rarely adequate for anyone involved in a claim and certainly not for the employer and employee.

An employer trying to complete the Board’s prescribed form for reporting an injury is immediately confronted by puzzling requirements. Many of the questions are for small details which are never part of a compensation adjudication (the employers industrial code) while others allowing a woefully small amount of line space for what might require a lengthy explanation (how did the accident occur). Other parts of the form seem to assume that an accident must have occurred, even though many employers are equally certain that it did not. (WCxKit)

(Attach additional documents to the C-2, where necessary to explain fully what happened.)

The employer should realize that its role is much larger than a single C-2 form. To assist in the proper resolution of a claim (even though that sometimes means a dismissal) the employer should be aware that they frequently have far more information than is requested. The information may be forwarded to a carrier and the Board, taking care that confidential medical information may require special handling.

An employer should make the carrier aware of relevant information which it possesses about the employee’s physical limitations at time of hire, so that these are not automatically assumed to be a consequence of a new injury.

The employer can also list for the carrier known prior injuries, especially those resulting in a lawsuit or compensation claim. The employer can also list prior employers, with dates of work and name address and phone number of the employers.

The employee may have periods of absence due to illness or injury. These should be made known to the carrier. Since a claim is being filed for medical disability, such information must be available to treating doctors and independent examiners.

The employer’s role also extends to maintaining a relationship with the employee. The law imposes upon the employer (not the carrier) the obligation to see that appropriate medical treatment is provided. Calling the employee to make sure that they are under care is entirely appropriate and much appreciated by the worker’s family.

The employer can also begin return to work measures. Asking the worker about the treating doctor’s opinion about possible return to work is not intrusive. In fact, it is essential. (WCxKit)

Being involved means a lot more than the completion of a single form. Remaining an active presence results in faster adjudication, quicker return to work, less wage loss and fewer contested issues.

Author Attorney Theodore Ronca is a practicing lawyer in Aqueboque, NY. He is a frequent writer and speaker and has represented employers in the areas of workers compensation, Social Security disability, employee disability plans, and subrogation for over 30 years. Mr. Ronca has 21 years experience in searching and retrieving medical records and many other types of documents for defense workers Compensation claims. Contact Attorney Ronca at 631-722-2100 or medsearch7@optonline.net

For the most part, workers compensation claims are generally compensable. The general public thinks the opposite, which is that all insurance companies want is to deny coverage for injuries. Not true.

In all actuality, probably 80-90% of claims are accepted in the beginning. But, claims can be denied later, down the road for various reasons. The question comes up as to how to properly dispute a claim where there is a question on the compensability, and we outline a few strategies below.

1 – If a reported claim is questionable, the adjuster needs to know right away so a proper dispute for investigational purposes can be filed.

Employers, at the time a claim is reported to their carrier, will know a lot more about the claim from the get go than the adjuster. Once a file is received by the adjuster, the claim has to be set up, then contacts to the employee and employer have to be made, medical records have to be reviewed, and after all of that an initial decision on a claim can be made.

But if the employer is calling it a questionable claim, it should be marked as questionable right off the bat, so the adjuster can file a dispute that the compensability of the claim is under investigation. Most jurisdictions have a time limit on how long the investigation of a claim can be , and if the adjuster fails to file for that extension within that time limit, the claim could have to be conceded as compensable, at least in the beginning.

This leads to leakage, since claims dollars are being spent on a claim that may not be compensable. It takes time to take statements, get medical records, get past records, do background checks, etc. If an adjuster can file that extension right off the bat then they can take some time to really investigate the claim, and make the proper decision on the compensability.

Generally, questionable claims will receive more of the adjuster’s attention towards investigative means as well. Especially when the employer notes on the first report of Injury that the claim is questionable on their end, this automatically raises a red flag for the adjuster. The adjuster will review the initial parts of the claim, and can form questions that they will want to ask the employee when taking their statement.

The first call an adjuster will make will be back to you, the employer, asking why the claim is questionable. Employers can talk to witnesses, and follow up on leads made by other employees that a claim may not be 100% compensable and pass that information on to the adjuster in the beginning of their investigation.

All of these issues greatly help the adjuster, and in the end after all the investigation is completed, a proper decision can be made on the claim as to the overall compensability.

2 – What if a claim starts off as compensable then needs to be disputed later on?

Throughout the course of an investigation, a claim can start off as compensable. Say an employee strains his back while working. This was a witnessed injury, reported promptly, and the worker was sent for treatment the same day. Usually benefits will be conceded and the claim will be accepted in the initial stages.

But say for example, a month later in the medical records the claimant tells the doctor they hurt their back over the weekend doing yard work, then made it worse while working. This should lead to a dispute in all cases. The adjuster has no way of knowing how bad the claimant had injured themselves while outside of work, and most often the injured worker will not be able to go back and say that the injury/ongoing disability is 100% work related.

Unfortunately, these cases are hard to come by. Claimants are no dummies, and even if this did occur they sure aren’t going to go to an occupational clinic and talk to the doctor about how they injured themselves outside of work. But it does happen, and the adjuster should catch this every time. Using Nurse Triage can reduce the likelihood of this type of claim because the employees speak to a nurse immediately at the time of injury so there is less room to change a story.

3 – What if a worker is injured doing a simple task, and the diagnosis is way worse than it should be in relation to what the worker was doing at the time of injury?

For examples like this, adjusters rely on the medical records, and the mechanism of injury. If a claimant states that they sustained a lumbar strain while at work lifting a 20 lb tote of parts, and the doctor finds all sorts of objective evidence on exam of severe, disabling back pain, then something is not right. The lifting of 20 lb. should not have such excessive force that it will herniate multiple lumbar discs. The adjuster should set an IME, and let that IME physician comment on the severity of the symptoms in relation to the stated work injury.

This type of scenario is a lot more common than you would think. The general public probably has never had a diagnostic workup on their spine, nonetheless an MRI test. If a claimant sustains a simple injury, then after an MRI was completed the MRI is positive for all sorts of issues, it doesn’t mean that they all are related to the work injury.

Plus you have to beware of false positives. Just because someone has multiple levels of disc bulges, that doesn’t mean that all of those are related to work. Research has been done that shows workers of all ages and occupations can have a varying level of degree of spinal issues, regardless of age. It is the adjuster’s job to determine what, if anything, is related to the work injury, treat those issues, and deny ongoing treatment for the rest of the worker’s spinal problems.

4 – What if you know the injury is not legit, should you file the claim anyway?

The answer is all cases is YES. It is the adjuster’s job to determine if an injury occurred out of the course and scope of employment. A Human Resources professional for a company is not an adjuster (at least not very often), and if a worker comes to you and alleges a work injury, no matter what the circumstances, it should be reported to your carrier. The adjuster has training and certification, and they are qualified to deny a claim that is alleged to be work related. Some jurisdictions can carry heavy penalties for failure to report a work injury to their Carrier, and you do not want to be hit with one of those penalties. You pay a premium to a Carrier to protect you in insurance matters, and this is what they are there for. The employer should gather all the pertinent details, and report the claim promptly. Indicate on the First report of Injury that the claim is questionable, and then go from there. Follow up with the adjuster, and chances are it will be denied as you suspected.

Summary:

There are several way to dispute a questionable claim. But the most important thing to do, as an employer, is to gather all the information you can on the claim, then report it promptly to your carrier and follow it up with a phone call to the adjuster. The more you work together with your Carrier, the better the chance that questionable claims will be denied and not paid.

Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Manage Your Workers Compensation: Reduce Costs 20-50%www.WCManual.com. Contact: RShafer@ReduceYourWorkersComp.com.

The NY workers compensation board has in existence four new sets of treatment guidelines for the back, neck, knee and shoulder. These sites account for the majority of all serious claims. The guidelines can be seen on the Board website.

All four sets contain an identical section A.19 which provides that a treating physician may request a chance to inspect the work site “to obtain information regarding the demands of the patient’s pre-injury job”. The physician can then estimate a level of disability based on actual job duties rather than the old, universal “mild, moderate or marked” disability. (WCxKit)

The guidelines recognize that few doctors will trouble to actually view the worksite, even though that provides the most accurate information.

The employer, whenever there is a serious injury, should immediately send the treating doctor a letter asking if the doctor will be requesting an “on-site inspection”. Copies should be sent to the Board and carrier. In nearly every case, no inspection will be requested.

However, if there will be medical testimony taken, the carrier/employers examining doctor should make a brief visit to the work site prior to testimony. The doctor will then be in a position to answer what the doctor saw in the workplace that supports the report’s conclusion.

Such testimony will be far more powerful that merely assuming (or guessing) or taking the word of the worker as to what the activities are, even though such speculation has been the rule for decades.

If a treating physician should make a rare appearance they should be welcomed. Treating physicians are seldom accorded such treatment and are more likely to be sympathetic to the employer’s point of view when they receive it. (WCxKit)

An end to the practice of having experts testify “in a fog or a vacuum” will be beneficial to both the employer and the employee.

Author Attorney Theodore Ronca is a practicing lawyer from Aquebogue, New York. He is a frequent writer and speaker and has represented employers in the areas of workers compensation, Social Security disability, employee disability plans, and subrogation for over 30 years. Mr. Ronca has 21 years experience in searching and retrieving medical records and many other types of documents for defense of workers compensation claims. Contact Attorney Ronca at 631-722-2100 or medsearch7@optonline.net.

For the most part, workers compensation claims are generally compensable. The general public thinks the opposite — that all insurance companies want to deny injury coverage.

In actuality, probably 80 to 90 percent of claims are accepted in the beginning. But, claims can be denied later down the road for various reasons. How does an employer properly dispute a claim when there is a compensability question?(WCxKit)

4 Strategies to Dispute a Claim

1.If a reported claim is questionable, the adjuster needs to know right away so a proper dispute for investigational purposes can be filed.

At the time a claim is reported to the carrier, employers will know more than the adjuster. Once the adjuster receives the file, he or she sets up the claim, contacts the employee and employer, reviews medical records, and only then makes an initial decision.

But if the employer calls the claim questionable, it should be marked as questionable right away so the adjuster can file a dispute that the claim’s compensability is under investigation. Most jurisdictions have a time limit on how long the claim investigation can be. If the adjuster fails to file for the extension within the time limit, the claim could be conceded as compensable — at least in the beginning.

This leads to leakage because claims dollars are being spent on a claim that may not be compensable. It takes time to take statements, get medical records, get past records, do background checks, etc. If an adjuster can file that extension right off the bat, they can take time to really investigate the claim and make the proper decision on compensability.

Generally, questionable claims receive more of the adjuster’s investigative attention. This is especially true when the employer notes on the first report of Injury that the claim is questionable; this automatically raises a red flag for the adjuster. The adjuster will review the claim’s initial parts and form questions to ask the employee when taking their statement.

An adjuster’s first call will be to you, the employer, asking why the claim is questionable. Employers can talk to witnesses, and follow up on leads made by other employees that a claim may not be 100 percent compensable and pass that information on to the adjuster in the beginning of their investigation.

All of these issues greatly help the adjuster, and after the investigation is completed, a proper decision can be made on the claim as to overall compensability.

2.What if a claim starts off as compensable then needs to be disputed later on?

A claim can start off as compensable and then change. For example, an employee strains his back while working. There was a witness and it was reported promptly. The worker was sent for treatment the same day. Usually benefits will be conceded and the claim will be accepted into initial stages.

But, a month later the claimant tells the doctor he hurt his back the weekend before the work injury doing yard work, then he made it worse while working. This should lead to a dispute in all cases. The adjuster has no way of knowing how bad the claimant had injured themselves while outside of work, and most often the injured worker will not be able to go back and say the injury/ongoing disability is 100 percent work related.

Unfortunately, these cases are hard to come by. Claimants are no dummies, and even if this did occur most do not go to an occupational clinic and tell the doctor about how they injured themselves outside of work. But it does happen, and the adjuster should catch this every time. This can be seen in emergency department records, too.

3.What if a worker is injured doing a simple task, and the diagnosis is way worse than it should be in relation to what the worker was doing at the time of injury?

For examples like this, adjusters rely on the medical records and the mechanism of injury. For example, a claimant states she sustained a lumbar strain while at work lifting a 20-pound tote of parts. Then the doctor finds all sorts of objective evidence on exam of severe, disabling back pain. Something is not right. Lifting 20 pounds should not have such excessive force that it herniates multiple lumbar discs. The adjuster should set an independent medical evaluation (IME), and let the IME physician comment on the severity of symptoms in relation to the stated work injury.

This type of scenario is a lot more common than one would think. The general public probably has never had a diagnostic workup on their spine or an MRI test. If a claimant sustains a simple injury and the resulting MRI shows all sorts of issues, it does not mean they all are related to the work injury.

An employer also has to beware of false positives. Just because someone has multiple levels of disc bulges, does not mean all of those are related to work. Research shows workers of all ages and occupations can have a varying level of degree of spinal issues. It is the adjuster’s job to determine what, if anything, is related to the work injury, treat those issues, and deny ongoing treatment for the rest of the worker’s spinal problems.

4.If you know the injury is not legit, should you file the claim anyway?

The answer is in all cases is YES. It is the adjuster’s job to determine if an injury occurred out of the course and scope of employment. A human resources professional is not an adjuster (at least not very often), and if a worker comes to you and alleges a work injury, no matter what the circumstances, it should be reported to your carrier. The adjuster has training and certification, and he or she is qualified to deny claims. Some jurisdictions can carry heavy penalties for failure to report a work injury to the carrier. You do not want to be hit with one of those penalties. The company pays a carrier’s premium to be protected in insurance matters. This is what they are there for. The employer should gather all the pertinent details and report the claim promptly. Indicate on the first report of injury that the claim is questionable, and go from there. Follow up with the adjuster, and chances are it will be denied as you suspect.(WCxKit)

In sum, there are several way to dispute a questionable claim. But the most important thing an employer can do is gather all the information on the claim before reporting it promptly to the carrier. Then, follow it up with a phone call to the adjuster. The more you work together with your carrier, the better chance the questionable claims will be denied.

A surefire way to make a workers compensation adjuster cringe is to hand them a medical report where it is alleged the injured employee has developed fibromyalgia due to a workers compensation injury. Fibromyalgia can be loosely defined as an incurable condition that causes widespread chronic pain in the muscles and connective tissues with an abnormal increase in pain level in response to touch or pressure. Fibromyalgia has other symptoms besides pain including joint stiffness, muscle spasms, weakness in the limbs, fatigue, and sleep disturbance. Also, some people alleged to have fibromyalgia, will have other symptoms including tingling, numbness, difficulty swallowing, and cognitive issues.

There is a lack of consensus as to the causes of fibromyalgia as there is no conclusive, objective diagnostic test. Some medical providers believe fibromyalgia develops in people who have a low threshold for pain with their brain being super sensitive to pain signals. Other medical providers question the validity of this. These medical providers do not consider fibromyalgia a valid diagnosis because abnormalities are lacking in the physician’s examination of the employee. It is for this reason that workers compensation adjusters will question the validity of a fibromyalgia diagnosis from a doctor known to be “claimant friendly.” (WCxKit)

People diagnosed with fibromyalgia often are suffering from stress, depression, and anxiety. It is the high level of overlap with stress, depression, and anxiety that leads many medical providers to consider a diagnosis of fibromyalgia to be an incorrect diagnosis. To these medical providers, it is not a musculoskeletal problem, but a neuropsychiatric disease.

Credence is given to the medical providers who consider fibromyalgia a neuropsychiatric condition because most people who develop fibromyalgia have various cognitive disorders including impaired concentration, diminished attention spans, long-term or short-term memory loss, the inability to multi-task, and impaired speed of performance.

Most medical providers, including those who diagnose fibromyalgia, are reluctant to attempt to treat it. The injured employee diagnosed with fibromyalgia will be transferred from the medical provider who was treating the claimant to a pain management specialist. But even with pain management specialists, there is a vast array of methods used to deal with fibromyalgia with no single treatment plan having widespread acceptance.

It is the use of prescription fibromyalgia medications that causes concern in the medical community. When injured employees are given prescriptions for pain medicines for a medical condition that is hotly debated, it causes some consternation with the medical providers who do not consider fibromyalgia a valid diagnosis.

When the person with the diagnosis of fibromyalgia is given antidepressants, they improve primarily in their level of pain, depression, sleep disturbances, and fatigue. This seems to bolster the position of the medical providers that fibromyalgia is a neuropsychiatric condition, not a musculoskeletal condition.

Using narcotics to treat fibromyalgia creates a lot of controversy as well. There is a lack of clinical trials that support the use of opioid in people with fibromyalgia, but many pain management clinics prescribe them freely without concern for addiction and abuse. (WCxKit)

The frown on the workers compensation adjuster’s face is due to the fact that rarely do people with fibromyalgia improve. They also never die from fibromyalgia and seldom does the condition degenerate after it is established. The workers compensation adjuster knows the fibromyalgia claim will be around for a long, long time.

_________________________________________________________PERSONAL EXPERIENCE OF MEDICAL CASE MANAGEMENT RN:
After publication of the above article, an RN Medical Case Manager from a major medical case management company provided the following account of an experience she had with one of her employees. It was important information to relay, so I am reprinting it. She asked me not to use her name:

“I had an employee who suffered from this ‘disorder’ for almost 3 years now – as diagnosed by a Medical Doctor who was a specialist in treating Fibromyalgia. She had every test you can imagine to rule out brain injury / neuro disorders. She spent THOUSANDS of dollars and underwent PT for many months . . . I can only guess total costs exceed $150,000 in tests, MD visits, P.T. and medications.

I had a chiropractor who put on an Advanced Nutrition course who happened to mention that he strongly feels and can prove that Fibromyalgia can be ‘cured’ if the patient is willing to change their eating habits. This involves avoiding all sugars and grains and consuming good fats and protein. Among the treatment included was chiro adjustments – she underwent approx 12 and will need about 12 more on and off throughout her life. In under 45 days she had reduced her need for medication (saving over $300/month) and is pain free for the first time in 3 years.

He has implemented this treatment (nutrition, exercise and adjustments) on several occasions with patients diagnosed by medical experts for Fibromyalgia. My employee took pleasure in telling her Fibromyalgia doctor how she well she is doing now (he is a highly respected MD at Vanderbilt University). She is now completely free of taking any medications and considers herself back to normal!

But you know how our world frowns on chiropractic treatment! 😉 Such a shame.”

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing, publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.

In Arizona, every employer who has one or more employees, whether full-time or part-time, minors, family members or aliens, is required to carry workers compensation insurance. There are some exceptions – sole providers and members of a limited liability company or a limited liability partnership are not required to have workers comp insurance on themselves, but are required to provide workers comp coverage for themselves. Workers comp coverage is not required for independent contractors or a worker whose employment is both casual and not in the usual business of the employer. The only other exception to workers comp coverage is for a domestic servant who works in a home.

Obtaining Coverage

To obtain workers compensation coverage in Arizona, the employer has four options:

Purchasing a workers compensation insurance policy from an insurance company licensed to do business in Arizona.

Obtaining approval to self-insure from the Industrial Commission of Arizona.

The employee must report the injury to the employer “forthwith,” but the failure of the employee to report the injury is excusable, if the employee has a valid reason for not reporting the claim timely. The employer is required to report the injury claim to the Industrial Commission of Arizona within 10 days of the claim being made.

Medical Benefits

The employer must provide full medical benefits without time or monetary limitations. The employer can direct the injured employee to a medical provider of the employer’s choice for the initial medical visit. After the first visit to a medical provider, the employee has the choice to continue to treat with the medical provider chosen by the employer, or to select their own medical provider. This does not apply to self-insured employers. If the employer is self-insured, the employer may select the medical provider, except in emergencies.

Temporary Total Disability Benefits

The temporary total disability (TTD) benefits are calculated as two-thirds of the employee’s average monthly wage, with the average monthly wage capped at $3,920.75 for TTD calculation in the calendar year 2011. The Industrial Commission determines the average monthly wage each August for the next calendar year. The maximum weekly TTD benefit in 2011 is $603.19. TTD benefits are paid every two weeks. In addition to the amount paid based on the average monthly wage, there is an additional $25 allowance for dependents added to each biweekly check if the employee has any one or more dependents. The Industrial Commission calculates an annual percentage increase in the TTD benefit, based on changes in the state’s average monthly wage. There is an automatic cost of living increase each January 1, for accidents with a date of injury of January 1, 2010 or later. The minimum TTD benefits are calculated as two-thirds of the employee’s average monthly wage, but there is no statutory minimum amount.

The first seven days of disability (the waiting period) is not paid to the injured employee unless the employee is disabled for more than 14 days. TTD benefits can be paid for as long as the employee remains disabled.

Temporary Partial Disability Benefits:

In Arizona, if the employee is able to return to any type of work, but at a lesser rate of pay then the amount the employee was earning prior to the injury, the employee is entitled to temporary partial disability (TPD) benefits. The TPD benefits are paid at two-thirds of the difference between the pre-injury wage and the post-injury wage.

Permanent Partial Disability Benefits:

Arizona has two types of PPD benefits, scheduled and unscheduled. Scheduled disabilities are for body parts listed in the Arizona law, which includes arm, hand, thumb, fingers, legs, foot, toes, eyes, hearing, teeth, facial disfigurement, and scarring. For PPD, the injured employee receives a percentage of the schedule amount based on the percentage of disability. The PPD is then paid monthly on a percentage of the average monthly wage until the award is paid.

If the employee has an unscheduled disability, the injured employee may receive a percentage of the loss of earning capacity. The claim is referred to the Industrial Commission of Arizona who will review the claimed loss of earning capacity and will decide to what extent the employee will be compensated.

Permanent Total Disability Benefits:

If the employee is determined to be totally disabled as a result of the injury, the employee will continue to receive two-thirds of the average monthly wage for the duration of the disability, even if for life. PTD follows the same dollar caps as TTD.

Death Benefits:

The burial expenses in Arizona are covered for a work-related death up to $5,000. The death benefits for a dependent spouse and children follow the same guidelines as TTD benefits – two-thirds of the average monthly wage – up to a maximum of 500 weeks. There is no dollar maximum for death benefits. The spouse loses the death benefit if the spouse remarries, but receives two years of benefits in a lump sum. Children receive the death benefit until they are 18-years-old, or 22-years-old if enrolled in accredited educational institution.(WCxKit)

Vocational Benefits:

Arizona workers compensation law does not require rehabilitation benefits/vocational benefits to be paid for by the workers compensation insurer. The injured employee can apply to the Industrial Commission of Arizona Special Fund for economic assistance with rehabilitation.

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing, publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.

It seemed like a simple enough claim. The employee, a truck driver, was driving along when a car pulled in front of him from a stop sign. The big Mack knocked the car out of its path, while the truck driver brought the truck to a stop. The truck driver jumped out of the cab and ran over to check on the woman and her children in the car. The ambulance arrived and took the family away. When the police interviewed the truck driver and asked if he was hurt, he said, “No.” The next morning the truck driver awoke with a very sore neck and aching back.

It was three weeksto Christmas and the truck driver, having a family to care for, continued to work each day taking heavy doses of Tylenol. By Christmas he was in constant agony and with his wife’s encouragement, went to the local emergency room. The doctor diagnosed both back and neck strain, and told him he could not work. The employee reported the claim to the trucking company. The trucking company clerk, whose job it was to report all workers comp claims to the third party administrator (TPA), noted the accident occurred three weeks prior to being reported. The trucking company’s policy with its employees was for all injuries to be reported within five days of the date of injury. When the clerk reported the accident to the TPA, she told the adjuster the claim should be denied, as the police report showed the truck driver was not hurt and failed to report the claim within the employer’s five-day reporting period. (WCxKit)

The adjuster said, “Okay, if that is what you want,” and promptly sent the truck driver a denial of benefits letter. Unfortunately, the state law where the claim occurred, allows the employee one year from the date of the accident to report the claim. When the truck driver received a denial of benefits letter he immediately hired a lawyer.

The adjuster knew what the law was, but made a wrong decision, by allowing the employer’s reporting policy to prevail over state law. The adjuster should have immediately advised the reporting clerk that the state statutes give the employee a year to report the injury. The adjuster abandoned decision-making on the claim to the employer, even though the adjuster’s knowledge of workers comp statutes was greater than the clerk reporting the claim.

Since the adjuster denied the claim based on the employer’s wishes (or the WC clerk), no further action was taken.

Ten things the adjuster failed to do:

Make 24-hour three-point contact with the employee, employer, and medical provider.

Obtain a recorded statement from the employee regarding the details of the accident and the nature and extent of the employee’s injuries.

Obtain documentation on the damage to the truck (to reflect the force of the impact suffered by the driver).

Obtain information on the woman who caused the accident for the purpose of subrogation.

Put the insurance carrier for the other party on notice of the intent to subrogate.

Obtain the doctor’s diagnosis and prognosis.

Obtain wage documentation and in order to calculate the indemnity benefit rate.

Establish appropriate reserves for the indemnity and medical cost.

Arrange for the employee to return to work on light/modified duty.

Provide any type of medical management on the claim.

Now, since employee hired an attorney who expects to earn a fee, when the employee was released to light duty following his first doctor’s visit, the attorney failed to convey that information to the adjuster. The attorney arranged for the employee to see a doctor he referred his client to. This new doctor kept the employee off work until the employee, ignoring the doctor’s advice, returned to work on his own.

The attorneywaited until the employee was released back to full duty before sending his letter of representation. The attorney-selected doctor gave the employee a small impairment rating from which the attorney would take his fee, plus his percentage of the employee’s PPD, for the time the employee was kept off work.

When the defense attorney strongly recommended the claim be settled, the adjuster had nothing to mitigate the damages. As a part of the settlement agreement, the TPA gave up the right to subrogate against the woman who caused the accident, allowing the employee and his attorney to bring a lawsuit for the traffic accident.

The employer and/or the clerk did not know the law or understand the consequences of denying compensation on a legitimate claim, even when reported late. What should have been either a medical-only claim or a very minor indemnity claim became a PPD claim, costing at least five times what it should have, because the adjuster abandon her (or his) responsibilities and allowed the employer to make the decision on compensability. The TPA also had to negotiate away the right of subrogation to get the claim settled. With subrogation rights, the entire amount paid by the TPA on the claim could have been recovered. (WCxKit)

If, as an employer, you do not know all the aspects of the workers compensation statutes in your state, trust the adjuster to make the correct decision. If you question the adjuster’s decisions on claims, discuss why they are proceeding in the way they are. Create a partnership with the adjuster in the handling of your claims, but trust the adjuster judgment and knowledge of the law. It is usually a wrong move to handle workers comp claims by what you want rather than by what state statutes require. And, it might be a good idea to train all employees involved in processing workers comp claims to not make suggestions on how a claim ought to be handled.

Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.

DISCLAMER: Do not use this information without independent verification. All state laws are different and change frequently. We do the best we can to provide up-to-date information but do not guarantee it is always perfect. Consult with your corporate legal counsel before implementing any cost-containment program.

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